Recent cases and Commentary

Posts in Recent cases
Successful Private Prosecution

Following a 3 week trial at Southwark Crown Court, Barry has successfully prosecuted an individual and a foreign company for trade mark infringement. The prosecution was successful in resisting multiple legal challenges to the case throughout the proceedings. The primary defendant has been sentenced to two years custody (suspended) and has been disqualified from being a company director for 5 years. Confiscation proceedings will follow, and the prosecutor has been awarded costs from central funds. Barry was instructed by Lex Avoca Solicitors on behalf of an overseas corporation.

Regulatory win in Social Worker case

Barry has recently successfully represented a Social Worker before the Conduct and Competence Committee of the Health and Care Professions Council. His client faced serious allegations of malpractice in relation to the care of a vulnerable child and allegations of incompetence. Following a four day hearing, his client was cleared of all bar one contested factual allegations, and the Panel found that on the evidence his client’s fitness to practice was not impaired. Barry was instructed by Thompsons Solicitors @thompsonslaw @furnivallaw

Recent Regulatory win

Barry Smith's client, one of six Southern Health registrants, successfully has his fitness to practice found to be not impaired after a three-month NMC tribunal. He was instructed by Emma Hulme of Thompsons Solicitors.

New Confiscation Authority

The Court of Appeal has ruled in R. v Cole [2018] EWCA Crim 888 that when the Prosecution apply under section 22 Proceeds of Crime Act 2002 for a Defendant's available amount to be reconsidered in respect of a historic confiscation order, it was wrong to not give consideration to the a change in the law which post-dated the original confiscation order (at para. [48]). The change of the law in this case was the effect of the Supreme Court judgment in R. v Waya [2012] UKSC 51 in calculating the benefit figure in cases of mortgage fraud.

The Court rejected the argument that there had been undue delay in making the application around 3 years after the original confiscation order was made (at para. [42, 43]).

The Court also confirmed at para. [55] an earlier authority of Oyebola [2013] EWCA Crim 1052 in which it was held that where a property is obtained through fraud and is subsequently rented out, that rental income is properly included in the benefit figure calculation as the proceeds of crime. The Court rejected a novel argument that the income was no longer the proceeds of crime because the lender, for commercial reasons, had continued the arrangement, notwithstanding the original fraud (at para. [37, 38, 56]. The Court therefore rejected an appeal of a later confiscation order made against this defendant. 

Barry Smith was instructed by the Crown Prosecution Service in this appeal. For full details, see the original judgment.

Barry Smith instructed to defend insolvency prosecution

Following an extensive investigation of his client, Barry Smith was instructed by David Fendt of Edwin Coe LLP to defend a prosecution brought against a former Company Director by the Insolvency Service following the collapse of his employment companies. After a period of negotiation with the Insolvency Service and a full analysis of the underlying evidence, he was able to achieve a suspended sentence for his client despite the case involving £4 million worth of transactions and substantial liabilities to creditors remaining.